SOUTHERN BELL TELEPHONE AND TELEGRAPH CO., APPELLANT,
v.
JOHN SENECA, APPELLEE

Fla. 1st DCA | 1983-07-13
No. AO-159
WENTWORTH and ZEHMER, JJ., concur.
433 So. 2d 1369 Florida District Court of Appeal, First District (1983) Positive Treatment
Cited by 6 cases

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Synopsis

Southern Bell Telephone and Telegraph Co. appealed an award of temporary total disability benefits to an injured worker, John Seneca. The court affirmed benefits for intermittent periods from July 1980 to February 1981 but reversed the award of continuous benefits thereafter, finding that Seneca failed to test his employability after being offered suitable light-duty work and medical evidence showed he was capable of such employment.


Holding

The court affirmed the award of intermittent benefits for short periods from July 1980 to February 1981 but reversed the award of continuous benefits after February 17, 1981. Because medical evidence supported that Seneca could perform light-duty work, Southern Bell offered him appropriate employment, and Seneca made no effort to seek other employment after declining the offer, he was not entitled to continued temporary total disability benefits.


Headnotes

[1] Temporary total disability benefits may be awarded for short periods of temporary disability without requiring the claimant to test employability in the job market.

[2] A claimant must generally test employability in the job market in the absence of substantial evidence of medical inability to work during a period of claimed temporary di…

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Key Quotes

“in the absence of substantial evidence of medical inability to work during a period of claimed temporary disability, the claimant must test his em-ployability on the job market”

Establishes the foundational principle that claimants must demonstrate either medical incapacity or lack of job market opportunities to receive disability benefits

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Facts & Procedural History

Seneca was injured on the job in 1980. He received temporary total disability benefits for intermittent periods beginning in July 1980 and continuousl…

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Opinion of the Court
ROBERT P. SMITH, Jr., Judge.

ROBERT P. SMITH, Jr., Judge.

Injured on the job in 1980, claimant was awarded temporary total disability benefits for intermittent periods beginning in July 1980 and continuously from February 1981 through his date of maximum medical improvement in February 1982. § 440.15(2), Fla.Stat. (1979). The self-insured employer now contends that the lack of any medical testimony that claimant was unable to work, coupled with its offer of a sedentary job in February 1981, forecloses an award of temporary total disability benefits. We affirm in part and reverse in part.

There is no error in the award of intermittent benefits from July 1980 until February 1981. We are mindful of the general principle that, in the absence of substantial evidence of medical inability to work during a period of claimed temporary disability, the claimant must test his employability on the job market. See Commercial Carrier Corporation v. Bennett, 396 So. 2d 847 (Fla. 1st DCA 1981); Walter Glades Condominium v. Morris, 393 So. 2d 664 (Fla. 1st DCA 1981). But this principle “is plainly subject to qualification with respect to short periods.” Square G. Construction Company v. Grace, 412 So. 2d 397, 399 fn. 2 (Fla. 1st DCA 1982). These periods of claimant’s temporary disability ranged from as short as four days to no longer than two months. The medical evidence supports the award of benefits for those periods.

The deputy did err in awarding such benefits after February 17, 1981. On February 13, claimant’s treating physician, Dr. Thompson, advised claimant’s supervisor that he could return to sedentary work with Southern Bell. Three days later, the supervisor telephoned claimant and offered him a less demanding job as clerical supervisor. Claimant stated his belief that Dr. Thompson had told him to stay home and declared that he could not come in on such short notice without talking to Dr. Thompson. The supervisor told claimant to report to work the next day, go “off the payroll”, or retire. Claimant, who was eligible to do so, retired and made no further efforts to obtain employment. Later he came under the care of Dr. Griffin, who also opined that claimant could not return to his former position as an “outside plant engineer.” But Dr. Griffin, too, felt that claimant was able to work in light-duty employment. A referral physician, Dr. Alfonso, also stated that claimant should not return to his former job, but set no restrictions on his return to light-duty employment.

In light of the medical opinions that claimant was able to engage in light-duty work, Southern Bell’s offer of employment appropriate to his limitations, and claimant’s failure to test his employability after February 17, 1981, the deputy’s award of temporary total disability benefits therefore was in error. See Commercial Carrier Corporation v. Bennett, supra, involving a six month period after claimant’s release for work, without medical evidence that he sought either further medical attention or returned to employment; Walter Glades Condominium v. Morris, supra, involving an eighteen month period after discharge, without evidence of any effort at employment or medical attention for such period.

That claimant was pressured on short notice into making a burdensome choice between working or retiring does not prove that claimant was unable to take other employment throughout the year 1981. To the contrary, claimant could have accepted his pension and still have sought other employment, thus proving any entitlement to the additional benefits claimed.

AFFIRMED in part, REVERSED in part.

WENTWORTH and ZEHMER, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Daytona Linen Serv. & Mission Ins. Co. v. Cora M. Davis, 454 So. 2d 46 (Fla. 1st DCA 1984)
    …Fuster, 413 So. 2d 810 (Fla. 1st DCA 1982); Square G. Construction Co. v. Grace, 412 So. 2d 397 (Fla. 1st DCA 1982). The rule is also subject to qualification with respect to short periods of time. Southern Bell Telephone & Telegraph Co. v. Seneca, 433 So. 2d 1369 (Fla. 1st DCA 1983); Square G. Construction Co. v. Grace, supra.…
  • …loyability on the job market, this principle has been found “plainly subject to qualification with respect to short periods” when medical evidence supports the award of benefits for those periods. Southern Bell Telephone and Telegraph Co. v. Seneca, 433 So. 2d 1369, 1370 (Fla. 1st DCA 1983). Because there was some medical testimony below that O’Blocki was TTD beginning 25 May 1985, the award of TTD benefits from that date is affirmed. Affirmed in part and reversed in part. BOOTH, C.J., and WENTWORTH, J., con…
  • S. Bell Tel. & Tel. Co. v. Seneca, 512 So. 2d 1005 (Fla. 1st DCA 1987)
    …otal disability benefits for the period following claimant’s retirement was reversed on the ground that claimant had failed to seek subsequent employment after being offered a sedentary job by the employer. Southern Bell Tel. and Tel. Co. v. Seneca, 433 So. 2d 1369 (Fla. 1st DCA 1983). On the second occasion, the award of wage loss benefits from May 1982 through December 1983 was per curiam affirmed. Southern Bell Tel. and Tel. Co. v. Seneca, 458 So. 2d 277 (Fla. 1st DCA 1984). In the third order now before t…

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